9th Circuit partially lifts injunction on homeless camp laws

In the wake of a key U.S. Supreme Court decision, a 9th U.S. Circuit Court of Appeals panel on Monday withdrew part of a January ruling affirming U.S. Magistrate Donna M. Ryu's preliminary injunction barring San Francisco ordinances aimed at clearing homeless camps.

But in an unpublished order, the panel affirmed provisions of its ruling requiring city officials to comply with its own statute regarding how it handles items seized from unhoused people.

Monday's decisions followed a June 28 Supreme Court decision in which the court ruled, in a 6-3 vote with all the justices appointed by Republican presidents voting in favor, that laws banning people from sleeping or camping outside do not violate the Eighth Amendment's ban on cruel and unusual punishment. City of Grants Pass, Oregon v. Johnson, 2024 DJDAR 6000 (S. Ct., filed Aug. 22, 2023).

The published order vacated the portion of Ryu's preliminary injunction related to the Eighth Amendment, which relied on Grants Pass and an earlier 9th Circuit decision. Coalition on Homelessness et al. v. City and County of San Francisco, 2024 DJDAR 6408 (9th Circ., filed Jan. 23, 2023).

But the panel - comprised of 9th Circuit Judges Lucy H. Koh and Roopali H. Desai, appointees of President Joe Biden; and Patrick J. Bumatay, an appointee of President Donald Trump - wrote in its unpublished order that the city "has not challenged the propriety of preliminary injunctive relief on Plaintiffs' Fourth Amendment claims and has not shown that the district court abused its 'considerable discretion' in fashioning a remedy."

The order added that the city must comply with its own "bag and tag" policies when authorities find unattended property - including medication and personal papers - and take it to a storage site for 90 days. "Requiring the City to comply with its own detailed policy document does not raise these concerns," the judges wrote.

A spokesperson for San Francisco Mayor London Breed praised the decision. "We appreciate the Ninth Circuit for expediting their decision to discontinue the injunction following the Supreme Court's decision on Grants Pass," the mayor's office said in a statement. "Conversations with ... City Attorney [David Chiu] are underway to inform our next steps, including how policies and procedures are updated."

The city has been operating under Ryu's preliminary injunction since December 2022.

But an attorney for the homeless plaintiffs who sued to block the city ordinance, Nisha Kashyap, said in a phone interview that the 9th Circuit decision only affects one of the claims in their lawsuit which relied on the Eighth Amendment.

Kashyap, program director of racial justice with the Lawyers' Committee for Civil Rights of the San Francisco Bay Area, said the city must comply with its policies and with provisions of an ordinance enacted by voters in 2016, Proposition Q, that requires the city to offer temporary shelter when clearing tents. She acknowledged that the situation was uncertain.

"This is still very fluid and very early, but we would expect the city to follow its own policies," Kashyap said.

The plaintiffs' lawsuit against San Francisco is still pending. A case management conference is scheduled next month.

Chiu also praised the ruling in a statement. "This will give our city more flexibility to provide services to unhoused people while keeping our streets healthy and safe. It will help us address our most challenging encampments, where services are often refused and re-encampment is common."

Kashyap disputed that contention, saying the city has always been able to act when homeless people decline shelter.